Smith v. Newsome, s. 87-8314

• Decision Date: 19 June 1989
• Docket Number: Nos. 87-8314,87-8477,s. 87-8314
• Citation: 876 F.2d 1461
• Parties: Gene SMITH, Petitioner-Appellant, v. Lanson NEWSOME and Michael Bowers, Respondents-Appellees. Danny SMITH, Petitioner-Appellant, v. Lansome NEWSOME and Attorney General for the State of Georgia, Respondents-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1461

876 F.2d 1461

Gene SMITH, Petitioner-Appellant, v. Lanson NEWSOME and Michael Bowers, Respondents-Appellees.

Danny SMITH, Petitioner-Appellant, v. Lansome NEWSOME and Attorney General for the State of

Georgia, Respondents-Appellees.

Nos. 87-8314, 87-8477.

United States Court of Appeals Eleventh Circuit.

June 19, 1989.

Warren Ott, King & Spalding, Atlanta, Ga., (court appointed), for gene smith.

Raymond Kelley, Westmoreland, Patterson & Moseley, Macon, Ga., (court appointed), for Danny Smith.

Mary Beth Westmoreland, Asst. Atty. Gen., State Law Dept., Atlanta, Ga., for respondents-appellees.

Appeals from the United States District Court for the Middle District of Georgia.

Before JOHNSON and EDMONDSON, Circuit Judges, and NICHOLS ^*, Senior Circuit Judge.

EDMONDSON, Circuit Judge:

Gene Lamar Smith ("Gene") and Danny Smith ("Danny") were indicted in Colquitt County, Georgia, for burglary and murder and were tried separately. Gene was convicted of both charges and was sentenced to consecutive terms of life and twenty years. Danny was convicted of felony murder and burglary, but the court set the burglary conviction aside as a lesser included offense. Danny was sentenced to life imprisonment. The Supreme Court of Georgia affirmed the convictions and sentences. Gene filed two consecutive state habeas corpus petitions; Danny filed one. All were denied. The United States District Court for the Middle District of Georgia denied the instant petitions in which each brother claims, among other things, that he received ineffective assistance of counsel based on a conflict of interest and that the jury charge on intent impermissibly shifted the burden of proof. We affirm.

I. BACKGROUND

Reggie Bostick discovered the body of his father, Elton "Pete" Bostick, lying on the ground beside the elder Bostick's car which was parked alongside the road. The victim had been shot in the head. The car was running, and the door on the driver's side was open. The police later found markings at the scene which suggested a struggle. At about the time of the murder, a house across the road from the scene of the murder had been burglarized.

A witness heard three shots fired at about the time of the murder, two close together and one a minute or so later. Three .223 caliber shell casings were found near the body. According to the younger Bostick, his father had left home earlier carrying a .223 caliber rifle in the car with him. This rifle has disappeared.

A doctor testified that the cause of death was a high velocity bullet entering the victim's right ear, travelling upward and backward, and exiting through the top of the head. Dr. Larry Howard, director of the Georgia crime lab, testified that the wound could have been made by a bullet fired from a .223 caliber rifle. The body also appeared to have been run over by a car.

Months after the crimes, a Colquitt County Deputy Sheriff received a telephone call which led to an interview with Shirley Baker who claimed to possess knowledge about the incident. Although Baker for some time claimed not to have been present at the time of the shooting, she ultimately admitted that she was there, and she implicated petitioners. Petitioners surrendered themselves, and the state trial court appointed G. Keith Murphy to represent both.

The parties stipulated in writing that Shirley Baker and petitioners would undergo polygraph tests, which were to be administered and interpreted by an expert polygraph examiner. Both petitioners and their attorney signed these stipulations. The examiner stated that he believed that Baker truthfully answered "yes" to questions whether she knew who shot Pete Bostick, whether she was present when Bostick was shot, whether Gene Smith shot Bostick and whether she was with Gene and Danny Smith when Bostick was shot.

Petitioners were asked whether they knew who shot Pete Bostick, whether Gene Smith shot Bostick, and whether they knew what happened to the gun that was used to shoot Bostick. They answered "no" to each question, and the examiner believed that petitioners' answers were untruthful.

Baker testified at trial that she and the petitioners were committing a burglary when the victim, who was a special deputy sheriff, came upon the scene. According to Baker, Gene struggled with Bostick, wrested a rifle from the victim and shot him with it. Baker testified that in trying to get away she ran over the victim's feet.

II. DISCUSSION

We review the dismissal of habeas petitions keeping in mind the limited (albeit extremely important) role of federal habeas corpus. "When the process of direct review ... comes to an end, a presumption of finality and legality attaches to the conviction.... The role of federal habeas proceedings, while important in assuring that constitutional rights are observed, is secondary and limited. Federal courts are not forums in which to relitigate state trials." Barefoot v. Estelle, 463 U.S. 880, 887, 103 S.Ct. 3383, 3391-92, 77 L.Ed.2d 1090 (1983). Federal habeas corpus "imposes special costs on our federal system.... In criminal trials [the States] ... hold the initial responsibility for vindicating constitutional rights. Federal intrusions into state criminal trials frustrate both the States' sovereign power to punish offenders and their good-faith attempts to honor constitutional rights." Engle v. Isaac, 456 U.S. 107, 128, 102 S.Ct. 1558, 1572, 71 L.Ed.2d 783 (1982).

A. Ineffective Assistance

The state solicited Danny Smith's testimony against Gene, and Danny's lawyer discussed this proposal with Danny. Gene argues that he received ineffective assistance of counsel because his lawyer represented conflicting interests by participating in plea bargain negotiations on behalf of Danny but not Gene. Danny complains that Murphy could not vigorously pursue a plea bargain for Danny while representing Gene.

"[T]o demonstrate a violation of his Sixth Amendment rights, a defendant must establish that an actual conflict of interest adversely affected his lawyer's performance." Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S.Ct. 1708, 1719, 64 L.Ed.2d 333 (1980); Strickland v. Washington, 466 U.S. 668, 692, 104 S.Ct. 2052, 2067, 80 L.Ed.2d 674 (1984). Petitioners cite Ruffin v. Kemp, 767 F.2d 748 (11th Cir.1985), in which counsel negotiated a plea bargain for one of his two clients to the exclusion of the other. The Ruffin court concluded that "[o]n the facts of this case, [counsel's] conduct of actual plea bargain negotiations for Brown, offering as part of the deal Brown's testimony against his own client, precluded effective plea bargaining on behalf of Ruffin and thus constituted an adverse impact on counsel's performance." Id. at 752 (emphasis added).

Ruffin is distinguishable from this case; here, joint representation did not prevent effective plea bargaining on behalf of either client. The Ruffin court expressly relied on the fact that the prosecutor was open to plea negotiations. Id. Gene's lawyer testified by deposition at Gene's first state habeas hearing that plea negotiations for Gene were precluded, not because of the possibility of a deal for Danny, but because the state was unwilling to bargain with Gene: evidence indicated that Gene was the trigger man, and the prosecutor was seeking the death penalty. On this record, Murphy's joint representation of Gene and Danny did not alter the possibility of a bargain for Gene.

Nor does Danny demonstrate an adverse impact on his lawyer's performance. Murphy testified at Danny's state habeas hearing that he could not negotiate a deal for Danny because Danny refused to testify, consistently denying any involvement in the crimes. Even if Murphy had represented only Danny, Murphy could not have negotiated a plea for Danny because Danny always claimed to have no testimony to offer the state. Petitioners have not established that their lawyer's performance was adversely affected. ¹ Because we conclude that the performance of petitioners' lawyer was not adversely affected, we do not address whether an actual conflict existed.

B. Jury Instructions on Intent

The state admitted at oral argument that the trial court's jury charge on intent in this case was quite similar to other charges which we have held violated Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), but the state contends that Gene has shown no cause for his procedural default of this issue and that any error in the instruction was harmless beyond a reasonable doubt as to both petitioners.

1. Procedural Default

The district court found that Gene's claim on the Sandstrom issue was barred by state procedural default. Gene raised the issue for the first time in his second state habeas proceeding. According to O.C.G.A. sec. 9-14-51 (1982),

[a]ll grounds for relief claimed by a petitioner for a writ of habeas corpus shall be raised ... in his original or amended petition. Any grounds not so raised are waived unless the Constitution of the United States or of this state otherwise requires or unless any judge ... finds grounds for relief asserted therein which could not reasonably have been raised in the original or amended petition.

The purpose of this rule is "to speed the finality of a defendant's conviction and the execution of his sentence, with efficiency and due consideration for the defendant's right to a full and fair hearing." Presnell v. Kemp, 835 F.2d 1567, 1573 (11th Cir.1988). The rule properly stresses the importance of a trial, prevents the piecemeal collateral review of convictions which are presumptively valid, promotes finality and preserves scarce judicial resources. "[P]rompt finality ... deters others from committing crime." Id. The state's important interest in prompt finality is undercut by successive collateral attacks on convictions and sentences. ² The goals served by Georgia's successive petition rule are served only to the extent that courts, state and federal, honor the rule....